Tribunal: Member Alison Mercer

The Department of Immigration and Border Protection (the Department) cancelled the applicant’s Subclass 457 visa on 12 January 2017. The applicant applied to the AAT for a review of the Department’s decision. The AAT set aside the decision on 5 October 2018.

The Department originally granted a visa to the applicant on 13 July 2015, valid until 13 July 2019, based on the approved nomination of her for the occupation of cook, made by the sponsor Happy Point Investment Pty Ltd.

A condition of the applicant’s visa was that if her employment ends, she must go no more than 90 consecutive days without a new approved nomination by an approved sponsor.[1]

The Department received notification from Happy Point Investment Pty Ltd that the applicant no longer worked for them. The Department asked the applicant to respond to this notification and the alleged breach of a condition of the visa. The applicant explained that she lost her job through no fault of her own because the owner of the business sold it and the new owners were not prepared to continue with her sponsorship. The applicant said that she was aware of the 90 day period and searched for employment, eventually finding work as a cook with Two Leos Pty Ltd, who lodged an application with the Department for approval as a standard business sponsor and a nomination of the applicant as a cook. Two Leos Pty Ltd was approved as a standard business sponsor but the nomination was refused. The business lodged a second nomination with the Department.

The Department considered the applicant’s response but decided to cancel the visa. The Department acknowledged that a nomination by her new employer was yet to be decided but gave greater significance to the fact that more than 13 months had passed since the applicant’s original employment ended.  

The applicant applied to the AAT for a review of the decision and appeared before the AAT to give evidence. Her circumstances had significantly changed since the Department’s decision. The second nomination submitted by Two Leo’s Pty Ltd was refused and she now had a new job as a cook with Wahring’s Restaurant Pty Ltd (Wahring’s). Wahring’s had lodged an application for approval as  a standard business sponsor and a new nomination for the applicant as a cook. Both were still pending at the time of the AAT’s decision.

Although the AAT found that the applicant had breached the visa condition because she ceased employment for more than 90 days, it could still exercise a discretion it had to not cancel the visa. It is not mandatory to cancel a visa once the condition of the visa has been breached so the AAT had to then weigh up the reasons for and against cancelling the visa.[2]

The applicant argued there were compelling reasons to remain in Australia. This included her current ongoing employment with an employer who strongly supported her employment. The applicant’s employer strongly supported this when they appeared before the AAT. The applicant also argued that she and her family would struggle to re-establish themselves in India, and that they would be affected financially and emotionally if they had to leave, given they had lived in Australia for approximately ten years. The applicant and her husband expressed particular concern about the effect on their son, who was born in Australia and had spent most of his life here, including commencing primary school.

The AAT accepted that the applicant had established a life in Australia, that the circumstances that led to the cancellation of her visa were not within her control and that she did try (and initially succeeded) in finding new employment and sponsorship/nomination in her originally nominated occupation. The AAT gave significant weight to the fact that the employment was in regional Victoria where there were documented skills shortages and the purpose of the subclass 457 visa which was to enable Australian employers to fill those skills shortages. Moreover, the Tribunal found that her current employer wished to retain the applicant’s services, and had now successfully nominated her as an approved standard business sponsor, and that the occupation of Cook remained on the Department’s Short Term Skilled Occupation List.

Considering the circumstances as a whole the Tribunal decided that the visa should not be cancelled and set aside the Department’s decision

Read the full written decision in AustLII.

 

[1] Condition 8107(3)(b) of schedule 8 to the Migration Regulations 1994

[2] The AAT had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.